YOUNIE v MARTINI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and POWELL JJA 21 March 1995 [1995] NSWCA 532 PERSONAL INJURIES — REASSESSMENT OF DAMAGES — MOTOR ACCIDENTS ACT 1988 SIGNIFICANT IMPAIRMENT PERSONAL INJURIES — REASSESSMENT OF DAMAGES — MOTOR ACCIDENTS ACT 1988 — SIGNIFICANT IMPAIRMENT — plaintiff injured in a car accident and brought a claim under the Motor Accidents Act 1988 — although the trial judge found that she was deliberately exaggerating her symptoms, he nevertheless awarded damages under various heads, the largest component of which was for "significant impairment" pursuant to s79 of the Motor Accidents Act 1988, however he awarded nothing for future economic loss. Held: on appeal: it does not necessarily follow from a finding of significant impairment at 18 per cent that the plaintiff has suffered a loss of future earning capacity. However, in the circumstances of the present case, the material which led the judge to assess significant impairment at 18 per cent should also have led him to conclude that there was a partial loss of earning capacity. In the present case, an appellate court can embark upon reassessment without doing injustice to either party. Priestley JA This is a plaintiff's appeal from a judgment given by His Honour Judge McLaughlin of the District Court on 4 May 1994 for an amount of $28,969. The case arose from a car accident in which the plaintiff was injured and for which the defendant admitted liability. The plaintiff was 39 at the date of the accident which happened on 12 March 1992. It is unnecessary to give any detailed description of her injuries. The trial judge accepted that she had been involved in an accident where there was a fairly strong impact and that she developed soft tissue injuries mostly to the right shoulder and neck soon afterwards. The argument before His Honour was whether at the time of trial there was still a residual condition and what loss flowed if he found there was. From 1974 to 1979 the plaintiff had worked at the Hammondville Nursing Home as a nurse's assistant where her duties involved the care mainly of geriatric patients. This involved a degree of heavy lifting. Then from 1984 she had worked with Home Care Services of NSW performing duties similar to those she had previously performed at the nursing home caring for injured geriatric and handicapped people, which duties also involved heavy lifting and bending. The plaintiff's claim was brought under the regime of the Motor Accidents Act. The trial Judge saw the plaintiff, who was cross examined quite effectively by counsel for the defendant. The result of the cross-examination and the Judge's observation of the plaintiff was that he thought she was deliberately exaggerating her symptoms with a view to impressing him with the idea that her injuries had been more serious and had a greater effect on her than was the fact. This finding, particularly in the circumstances of the present case, is one which an appellate court will not interfere with. The trial judge assessed the damages on that footing, that is of deliberate exaggeration by the plaintiff. 2 UNREPORTED JUDGMENTS The cross-examination had also gone into the extent of wage loss as a result of the accident. The evidence about this had been rather vague and in the cross-examination any perceptible basis for a finding of past wage loss resulting from the accident dissolved. The trial judge however, notwithstanding his views about the plaintiff's attempt to exaggerate her symptoms, said that nevertheless a number of doctors had accepted that she had the continuing condition and he also accepted that she had such a condition as at the date of trial but not to the extent that she alleged. The consequence of all this was that the trial judge awarded damages to the amount already mentioned made up of out-of-pocket expenses which were agreed at $2,174, an allowance for physiotherapy including a component for interest, of $2,500, past economic loss, for a period agreed between the parties, of $3,635, and for future economic loss, nil. The judges reasons were brief, and he explained at the beginning of them why he felt it expedient to confine himself to quite brief reasons. Nevertheless, in all respects they are perfectly comprehensible, except one. After he said he accepted the plaintiff had a continuing condition he assessed "the significant impairment at 18 percent, ie $20,660". The reference to "significant impairment" is a reference to the words of s79 subs! of the Motor Accidents Act 1988. That sub section has been amended but the Court has been told that the form which was relevant to the present proceedings was one which ran: "No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor vehicle accident unless the injured persons ability to lead a normal life is significantly impaired by the injury suffered in the accident". That is, the Judge by assessing significant impairment at 18 percent as he did was holding that at the date at when he was delivering judgment the plaintiff s ability to lead a normal life was significantly impaired to that extent. The plaintiff appealed against the judge's assessment of damages on a number of grounds but, in my opinion, very sensibly on coming to this court pursued only one ground, that is the judge's assessment of nil damages for future economic loss. As to other items of damage, they related principally to matters that were complete at the time of trial and in regard to those, his Honour's findings were clearly very much influenced by the plaintiff's credibility and were thus not really vulnerable in the circumstances of this case to any alteration on appeal. The position is different in my opinion in regard to future economic loss. Without going into the detail of the cases the case of the Medlin cases the cases of Malec v JC Hutton (1990) 169 CLR 638 and Mendalan v State Government Insurance Commission (1988) 127 ALR 180 are a pair of High Court decisions which in my opinion bring about the result that where a plaintiff demonstrates some loss of earning capacity lasting past the date of trial then notwithstanding difficulty in assessing an amount for future economic loss, courts are bound to award something for future economic loss unless, on the material before the court, it can be seen very confidently that notwithstanding the loss of capacity the plaintiff will not in fact suffer any damage of the future economic kind because of that lack of capacity. In the present case it was submitted for the defendant/respondent that because the trial judge had found significant impairment to the extent that he had it did not have to follow that the plaintiff had suffered a loss, even partially, of future earning capacity. URJ YOUNIE v MARTINI (Priestley JA) 3 I agree that it does not NECESSARILY follow but in the circumstances of the present case and in the light of the nature of the injury suffered by the plaintiff, found by the trial judge to be continuing to some extent at the time of trial, and the nature of her duties, it seems to me that some award should have been made for future economic loss. That is, it seems to me that the material which led the judge to assess significant impairment at eighteen per cent in this case, should also have led him to conclude that there was a partial loss of earning capacity even, although not yet reflected in actual loss, for which he should award some compensation on the Malec v Hutton principle against the possibility of future loss from that diminished earning capacity. That much, with respect, appears to me to be fairly plain. What is difficult is trying to place the figure on this element of the damages. It is difficult to do more than bear in mind the following matters: the injuries suffered by the plaintiff; the judge's view that some effect of those injuries was continuing at the date of trial; the judge's further view that the plaintiff was exaggerating the effect of the injuries on her; her general rate of wages; her age; her family position; and then to arrive at as informed figure as possible in light of those circumstances. The court is assisted to some extent in this difficult task by the fact that it was suggested in the submissions made on the plaintiff's behalf that the figure should be $15,000 to $20,000. I think I would be generally in agreement with this figure were it not for the necessity to bear in mind in reaching a figure the judge's view of the plaintiff's credibility. No doubt counsel for the plaintiff had already taken that factor into account in suggesting the figure which was put before the court. Nevertheless, in the circumstances where the plaintiff suffers this disadvantage of the credit findings against her at first instance I think the court must be conservative in arriving at a figure for what is a very speculative question of future damages. The figure I would arrive at would be $12,000. One thing I have omitted in reaching this point is that I proceeded directly from stating the opinion that the judge was in error in not allowing something for future economic loss to reassessment. Strictly speaking the court should have spent some time talking about whether it would send the matter back for a new trial or prefer to do it by way of reassessment. Counsel were not heard on that particular question. I take it that in a case of this scale nobody would be wanting a new trial and it does seem to be a matter where the court can embark upon reassessment without the likelihood of doing injustice to either party and notwithstanding the difficulties involved in reaching a final figure. The argument before us went on the footing that the only element of the judge's assessment challenged by the plaintiff/appellant was the one I have been dealing with, and that in the event of reassessment there would be no need to deal with any other elements of the case than future economic loss. So, although in some circumstances it might have been necessary to embark upon a reassessment of all the elements of the judgment, the court accepted that it was not necessary to be gone through here. In any event the other elements in the judge's assessment appear to be sound. Therefore all that needs to be done in my opinion is to add $12,000 to the figure arrived at by his Honour. In my view the court should uphold the appeal, set aside the judgment below and in its place, to operate from the same date as the judgment below, enter judgment for $40,969 together with an order that the respondent pay the plaintiff's costs of the appeal. 4 UNREPORTED JUDGMENTS Powell JA I agree. (Mr Rewell addressed on costs) Priestley JA: The court thinks the order should be the ordinary order whereby the respondent pays the costs of the appellant. 1. Appeal upheld. 2. Judgment below set aside. 3. Judgment for $40,969 entered for the plaintiff/appellant. 4. Respondent to pay the plaintiff's costs of the appeal.Counsel for the Appellant: A LIDDEN Instructed by: J AND R BRYDENS LAW OFFICE 15 Counsel for the Respondent: K REWELL Instructed by: CREAGH AND CREAGH253545